Monday, February 27, 2012

Failed Inspections

State v. Chaplin, 2012 VT 6 (mem.).

Maybe it’s no coincidence that not long after the SCOV announced a plan to tidy-up Vermont’s search warrant record-keeping system it released today’s case, which shores up the jurisprudence, too.  Sit up, criminal defense bar, the SCOV just road-mapped your next suppression motion for you.

We’d like to think this case could be Vermont’s version of HBO’s The Wire.  It’s got a police affidavit, two paid confidential informants, and surveillance footage from the scene.  Just trade those cargo shipments of heroin and volatile chemicals for a speaker, some Snap-on tools, and over a hundred Vermont vehicle inspection stickers, and you’ve set the stage for the best search warrant probable cause drama this side of the Massachusetts border.  You listening, McNulty?

Generally speaking, search warrants are the Fourth Amendment’s antidote to the notion that government needs to stay out of your house and out of your business.  In order to get one, the State needs to show probable cause (what the red-haired avatar of savy, female prosecutors, Rhonda Pearlman, calls, “PC”).  PC almost always comes from sworn affidavits by police officers.  They are a list of facts or first-hand observations that taken together demonstrate a reasonable belief that someone has committed a crime and that evidence of the crime exists in the place to be searched.  Where probable cause for a search warrant is based upon hearsay—usually information from an informant—the judge or “judicial officer” who issues the warrant needs to scrutinize the warrant even more carefully. 

Vermont is one of only six states that continues to interpret its state constitution as requiring the more rigorous Aguilar–Spinelli test (long since jettisoned by the U.S. Supreme Court) to determine whether there’s enough probable cause to issue a warrant based on hearsay.  Aguilar–Spinelli asks whether 1) there’s a substantial basis for believing the source of the hearsay is credible and 2) for believing that there is a factual basis for the information furnished.  In other words, the informant needs to be credible and the information provided needs to be verified in some way.

It’s important to remember that on review, the SCOV can’t and won’t consider whether the police actually found the evidence they expected to find.  So, in this case, it doesn’t matter that the police ultimately recovered from the defendant’s home incriminating evidence showing that he burglarized Bob’s Auto in Essex in the wee hours and stole, among other things, a huge pile of Vermont inspection stickers and a bunch of automotive tools.

In this case, the detective’s affidavit of probable cause relied upon a surveillance video and three informants.  The surveillance video (taken from a convenience store at the same location as the burglary) showed a “dark” minivan, “possible blue or green,” driving past at 3:13 a.m. on the morning of the burglary.  Tire tracks at the scene suggested “the perpetrator’s vehicle may have sustained minor front end damage to the undercarriage.”

As for the named informant, police recovered two inspection stickers in her home (different search warrant) that were among those stolen from Bob’s.  It sounds like the named informant flipped right away and admitted to selling the stickers, but not to participating in the burglary.  The named informant couldn’t remember the perpetrator’s name, but she provided quite a description: “an older, overweight male, who is balding with dark hair and a moustache, has children, lives with his girlfriend in an apartment behind Essex High School, drives a maroon minivan, has about five DWIs, was in court around August 17, and is the cousin of someone else identified by name.” 

Also informer stated that the perp. broke his arm in third grade; can play “Stairway to Heaven” on the guitar; giggles uncontrollably during Terrence Malick films; gives blood quarterly but fears needles; and has a been recently reunited with his grandmother, Ethel, on the reality show: America’s Most Wanted . . . Reunions.  (Okay, not really, but Come On!  How can you know all these other things and not remember any part of the guy’s name!)

Anyway, the named informant called back later with the name, “Ricki Chapman” (Defendant’s actual name is C-H-A-P-L-I-N), and she added that the maroon van had the   license plate “Rick and Jess.”

The first (paid) confidential informant told the detective that the named informant told him, that “Ricki had the stolen speaker in his car and the tools in his house.”   

The second (paid) confidential informant told the detective that “Ricki has a set of SnapOn tools for sale and that these tools were recently seen in his apartment.”  “Ricki” also told this person that he had access to inspection stickers.

Because all of this is hearsay (and sometimes double-hearsay), the detective stated that each informant “ha[d] provided information in the past that has been corroborated by other investigative means.”  And reason to believe there’s a factual basis for the information?  The detective went to the residence and found “a maroon/purple Dodge Caravan bearing VT REG ETL147” parked out front.  The van was registered to Chaplin and the girlfriend.  The detective also concludes, “[t]he shape, color and size of Chaplin’s van appears to match that of the van captured on video at the scene of the burglary.”

Are you convinced?  The SCOV sure was not, and neither was the Chittenden Criminal Division when it suppressed the evidence recovered from Mr. Chapman-Chaplin’s house.

Applying Aguilar–Spinelli one-by-one to the three informants, the SCOV starts with the named informant.  First, the affidavit does not suggest a reliable factual basis for the information provided.  No suggestion of how she obtained the information or how she knew Chaplin was involved in the burglary.  In other words, it doesn’t matter if she knows that his cat has feline diabetes if the affidavit doesn’t explain how she knew that the defendant committed the crime.  And what about reliability?  SCOV did not consider the fact that the informant correctly gave Chaplin’s address, girlfriend’s name, and vehicle type.  The name was wrong, the license plate was wrong, and the maroon-purple van was not a “blue or green” color as seen in the surveillance video.  Says the SCOV, why didn’t the detective simply confirm more of the statements?

Given that the named source gave the most information here, you can imagine what the SCOV did with the two confidential sources.  The first confidential informant just repeated what the named informant had told him.  And there’s no independent factual basis provided for the second informant’s statement that Chaplin had SnapOn tools for sale in his apartment.  Here, the SCOV lays down an important grammar lesson for Vermont law enforcement: avoid an affidavit that “obfuscates the basis for [the information] by use of the passive voice: ‘these tools were recently seen.’”  In other words, who saw the tools?

Oh, to be a fly on the wall for Grammar 101 next semester at the Academy.  “Avoid the obfuscation, ladies and gentlemen. . . .”   

What about the fact that the detective swore that all of the sources had provided credible information in the past?  Too general, says the SCOV.  “There was no description of the content of past information provided, how it was corroborated, or how it proved useful.

Ultimately, if the detective started an independently-supported suspicion, and the hearsay corroborated that suspicion, maybe an affidavit based on these sources would have been enough.  But where the suspicion comes from bare statements from informants, it’s a no-go.  In closing, the SCOV points out that the detective could have corroborated much of what the named informant said, such as the recent appearance in court or the five DUIs, instead of only listing information that he attempted to corroborate, but turned out to be wrong—like the guy’s name.

The SCOV affirms the Criminal Division’s decision to suppress the evidence.  Anybody’s inspection coming due?

1 comment:

  1. Aguilar/Spinelli is required by the language of Rule 41. The Court has consistently refused to decide whether it is also required by Article 11.